Court Denies Notre Dame Exemption from HHS Mandate

by Alex Marsland

On February 21st the Seventh Circuit Court of Appeals upheld a previous ruling that denies Notre Dame University temporary legal protection from the federal contraception mandate.

The HHS mandate allows religious institutions to sign an authorization form that indicates their objections to providing contraceptive coverage and prompts a third party administrator to provide
it instead. The case concerns whether the signing of the authorization form constitutes an infringement on the free exercise of religion.

The university filed a lawsuit asking for a temporary injunction to protect it from the penalties and fines associated with violating the law while it brought its
case through the courts. A lower court initially denied the request for an injunction, and the university appealed, while also agreeing to sign the authorization form to avoid the concurrent
penalties.

The majority opinion in this case, written by Judge Richard A. Posner, argued that because Notre Dame’s health care plans are run by an independent insurance company, the insurance company would
have to join the plaintiff in the objection. The university and the insurance company are perceived by the majority to be ethically independent agents. Although Notre Dame provides health
insurance through this third party, the university can have no say on what coverage this third party provides. The authorization form moves the financial burden from the university to the third
party, which, according to the majority, is enough to relieve the university from a substantial impediment to the free exercise of religion and conscience.

The majority disagreed that Notre Dame was directly responsible for providing the objectionable coverage by signing the authorization form, stating that the members of the majority “have trouble
understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies,
which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives.”

Judge Joel M. Flaum dissented from the majority of the opinion. In response to the majority opinion’s assertion that the university would not be morally culpable for signing the authorization
form, he writes that in cases of religious freedom, it is not the judge’s place to decide whether the university would be complicit in an amoral action. The court, he notes is composed of
“judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith.”

Flaum points out 19 legal precedents in which religious non-profits were given a preliminary injunction in the district court. Among these organizations are religious orders, diocese, and other
Catholic universities.

Finally, he turns to the words of the Religious Freedom Restoration Act, noting that it “provides that a federal law may not ‘substantially burden a person’s exercise of religion.’” He turns to
Korte v. Sebelius which states that a substantial burden arises “when the government ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”

The authorization form, he states, does not relieve this substantial burden, as it “requires the organization to perform a new act that it did not have to perform before.”